Reflection

It has been awhile since I have posted.  Recently, it has been a time for reflection.  Two of my closest mentors past away this last year.  Jack VanMetre and John Hanson were class individuals who were both excellent lawyers in their own right.  They taught me the two most important ethical rules to conduct your practice by.  Rule #1--Never ever put your client in harm's way.  Rule #2--the only thing you have in this profession is your word.

Those two simple rules encompass not onlyWI SCR Chapter 20 but everything that is important in how one handles themselves day to day, hour to hour in the practice of law.  They taught me these rules and they lived these two rules. I judge my cohorts by these two rules.

Although, I did not have a lot of contact with them the last 5 years, they remain with me as I continue my practice.  To both, "Godspeed."  I suspect that there were those long gone who needed a lawyer to advocate for them. 

A Continuing Challenge

The 2009 Report by the National Academy of Science on Forensic Science may finally be having an impact.  While popular TV shows give the impression that forensic crime lab analysts can divine the perpetrator based on almost anything, the reality is much much different. Setting aside the problem of crime lab dysfunction, during the past year I have mounted two full scale assaults on what can charitably be called junk science.   The first assault was against the fire investigation technique known as negative corpus.  The second assault was fought in the fantasy land known as forensic document examination, in particular, handwriting/printing comparisons. Both assaults were successful and the more I looked at these two issues the more offended I became as to their supposed legitimacy.

Now a state largely known for wrongful convictions, Texas, had passed a law which allows defendants to challenge their convictions that were secured by now questioned forensic identification methodologies.  While hair comparisons and bite mark comparisons are  front and center, the law apparently applies to any forensic method that is now being questioned due to scientific advances.  The Wall Street Journal recently reported on the new Texas law and its impact.  See http://on.wsj.com/1adHWs3

Daubert Challenge Results in Exclusion of Government Experts

I am ashamed to say that it had taken almost 18 years to mount a Daubert/Kumho challenge in Federal Court for the Western District of Wisconsin.  On the other hand, it was the first time that a defendant had done so in this District.  Gerald Johnsted was indicted for sending a threatening communication by use of the U.S. Mail.  The main evidence for the government was expert testimony by a "forensic handwriting expert" for the US Postal Service opining that the printed threats in two letters were written/printed by the defendant. A full day evidentiary hearing was held in July and the parties subsequently briefed the issue.  The district court found that under the Daubert and Kumho standards "that the science or art underlying handwriting analysis falls well short of a reliability threshold when applied to hand printing analysis."  The case is on hold while the government decides whether or not to appeal.

NFPA 921 helps secure reversal of an unfair Arson conviction

When Joseph Awe was originally prosecuted for burning down JJ's Bar, the state in conjunction with Mt. Morris Insurance Company used the theory of investigation known as 'negative corpus' to determine that the fire was intentionally set.  Never mind that Joe had a solid alibi or that the state relied on an electrical engineer hired by Mt. Morris, who failed to discover serious deficiencies in the electrical panel in the room where the fire started.  This injustice was finally put back to square one by Judge Richard Wright who concluded that Joseph Awe was entitled to a new trial because NFPA 921 in 2011 had concluded that 'negative corpus' should never be used to determine whether a fire was incendiary or not.

Dee Hall of the Wisconsin State Journal has written a series of pieces detailing the history of the Joseph Awe case and other wrongful arson prosecutions in the State of Wisconsin.  A link to the stories can be accessed here:http://host.madison.com/wsj/news/local/crime_and_courts/after--year-ordeal-and-nearly-years-in-prison-joseph/article_551cb39c-9583-11e2-bf21-0019bb2963f4.html

Use of Acquitted Conduct to be Reviewed

ALERT
*Later in the day on March 18, 2013, the Supreme Court denied the petition for cert in Stroud.  This is an issue that needs to be addressed as long as the Sentencing Guidelines continue to have a role in sentencing. *
 
Things have just been crazy and I have not had the opportunity to comment or write.  A trial in October 2012, and continued fighting with the State of Wisconsin for a new trial in State v. Awe, coupled with teaching at the law school this semester has made spare time extremely rare.

Anyhow, the Supremes are revisiting the use of acquitted conduct in enhancing a defendant's federal sentence. In Stroud v. United States, No. 12-6877, a case from the 8th Circuit, the U.S. Supreme Court will soon decide whether to review the constitutionality of a sentencing court's use of acquitted conduct in federal sentencing.  Stroud is asking the Court to review United States v. Watts, 519 U.S. 148, 157 (1997), which held that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence."

According to Stroud's petition, the issues presented in the case are as follows:

1. Does the use of conduct for which petitioner was acquitted by a jury in a prior state trial to enhance petitioner’s federal sentence violate petitioner’s right to trial by jury of the Sixth Amendment to the Constitution?

2. Does the use of conduct for which petitioner was acquitted by a jury in a prior state trial to enhance petitioner’s federal sentence violate the due process clause notice requirement of the Fifth Amendment to the Constitution?

The case was originally scheduled for the Court's conference of November 20, 2012.  But the Court requested that the Government file a response to Stroud's petition (which the Government filed on February 6, 2013).  The Court's request for a response might be a sign that the Court is interested in reconsidering the decision in Watts.

Jury Nullification

With the recent focus on the Supreme Court and its decisions on Arizona's immigration law, the healthcare affordability act, and lab analysts (Williams), a significant decision by Judge Kimba Wood in the SDNY went in large part unnoticed.  The US Attys office had charged 80 year old chemistry professor Julian Heicklen with jury tampering for standing outside of the courthouse and handing out pamphlets advising potential jurors of the their right to exercise the power of jury nullification.  The case had raised a number of issues including the interplay between the statute and the First Amendment.    Judge Wood dismissed the Indictment.  For the full story see: http://www.nytimes.com/2012/04/20/nyregion/indictment-against-julian-heicklen-jury-nullification-advocate-is-dismissed.html?_r=2

Someday before I retire perhaps we will see further empowerment of the jury in criminal cases by allowing them to be informed of the potential penalties the defendant faces and their right to nullify.

Clemens Trial: NOT GUILTY

The government's closing was not enough to counter act the unbelievability of Brian McNamee and the overall taint of what was Congress doing to begin with.  Per my multiple early predictions: not guilty.

From the opinion page of the Washington Post: 

Roger never tested positive for steroids, and nothing in his medical records indicates steroid use. His massage therapists testified under oath that they witnessed no physical signs of steroid use. The woman who cleaned his apartment testified that she never saw evidence of vials, needles or steroids.
The Justice Department spent millions of dollars, with more than 90 federal agents interviewing 179 individuals and producing 235 interview reports in a futile attempt to find somebody who gave HGH or steroids to Roger Clemens. It found no one. In this era of celebrity tell-alls, that is remarkable.
Congressional committee hearings are ill-suited to function as courts of law. It’s easy to see what happened: The committee rushed toward a media-fueled hearing and panicked when Roger asserted his innocence proactively in the days before the hearing. Lawmakers over-relied on thin witness testimony and referred Roger to the Justice Department to save face. Inexplicably, prosecutors announced their intention to indict Roger before even interviewing the chief accuser.

Sidenote: Supreme Court issued a decision today in White v. Illinois.  98 pages long and may subvert recent advances in the right to confrontation.  Will write more expansively on this decision in the near future.